NO.96-484 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1997



### INRE MARRIAGE OF LARRY R. MEYER, Petitioner and Appellant, and MARY 

### E.HOOVER-MEYER, Respondent and Respondent.

APPEAL FRQM: District Court ofthe Fourth Judiciaf Distrkt, In and for the County of Missoula, The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD: For Appellant: Larrqi Meyer, Pro Se, Edmonds, Washington For Respondent: Dennis E. Lind; Datsopoufos,MacDonald & Lind; Missoula, Montana

Filed: Submitted on Briefs: February 17. 1997 Decided: April 8, 1997

### Justice Terry N. 

### Trieweiler delivered the opinion of the Court. Pursuant to Section I, 

### Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shallnotbe cited asprecedent and shallbe published by its filing as a public documentwith the Clerk ofthe Supreme Court and by a report of its result to State Reporter Publishing Company and West Publishing Company. The appellant, Larry Meyer, filed motions, pursuant to 

## 5 40-4-219, MCA, and Rule 60(b),M.R.Civ.P., to modify custody and to set aside judgment in the District Court for the Fourth Judicial District in Missoula County. The District Court denied the motions and, pursuant tothe parties' marital and property settlement agreement, awardedattorney fees and costs to the respondent, Mary Hoover-Meyer. Larry appeals that part ofthe District Court's order which awards attorney fees and costs to Mary. We affirm the District Court. The issue on appeal is whether the District Court erred when it awarded attorney fees and costs to Mary. FACTUALBACKGROUND After twenty-five years of marriage, the parties separated and reached a marital and property settlement agreement ("the Agreement"). On April 

### 11, 

### 1995, the District Court entered a decree of dissolution,which incorporated the Agreement. The Agreement established the following parenting plan for Lisa, the parties' only child: "Mary has no plans tomove from Missoula. Unless circumstances change, this living arrangement will continue in effect."After the District Court entered the dissolution decree, Larry became aware ofMary's intention to rcrnarry and move from Missoula to Great Falls. In response, Larry filed motions pursuant to $ 40-4-219, MCA, and Rule 60(b), M.R.Civ.P., to modify custody and to set aside judgment. The motions alleged that: (1) Mary's relocationto Great Falls constitutes a change in circumstances which warrants a modification ofthe parties' existing custody arrangement; and (2) the dissolution decree was obtained by fraud, and therefore, is invalid. After a hearing, the District Court denied both motions. The District Court also awarded attorncy fccs and coststo Mary. Larry appeals that part ofthe District Court's order which awards attorney fees and costs to Mary. DISCUSSION Did the District Court err when it awarded attorney fees and costs to Mary? When the language of a marital and property settlement agreement is clear, a district court is bound by its terms. 

### Marriage of Caras (1994), 263 Mont. 377,385,868 P.2d 615, 620. We must decide,therefore, whether the District Court erred when it concluded that the attorney fees provision of the Agreement applies to Larry's motions. When we review a district court's conclusions of law, the standard ofreview is whether those conclusions are correct. 

### Carbon County 

### v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459,469,898 P.2d 680,686. Lany asserts that his motion to set aside judgment, made pursuant to Rule 60(b), M.R.Civ.P., was based on allegations of fraud and therefore, that Mary is not entitled to the 3

### attorney fees and costs attributableto her defense ofthat motion. In support ofhis claim, he cites Wisev. 

### Nirider (1993), 261 Mont. 310, 862 P.2d 1128. In Wise,the wife moved the District Court, pursuant to Rule 60(b), M.R.Civ.P., to set asidethe property settlement agreement and reopen the dissolution proceedings. She alleged that the agreement hadbeen obtainedby fraud andtherefore, was invalid. The District Court granted her motion. On appeal,we reversed the District Court and held that "the allegations of fraud



### . . .fall short of what is legally required to vacate a final judgment pursuant to 

### . . . Rule 60(b)." Wise,261 Mont. at 317, 862 P.2d at 1133. The husband claimed that, as the prevailing party on appeal, he was entitled to an award ofattorney fees. He based his claim on the following provision in the parties' property settlement agreement: In the event that either party brings legal action to interpret or enforce any of the terms or provisions of this Agreement, the prevailing party in said legal action is entitled to recover. 

## . . attorney fees 

# .. .

# . (Emphasis added.) We concluded that Wise's motion to set aside the property settlement agreement was not an action to "interpret or enforce" the terms ofthe agreement. Accordingly, we rejected Nirider's argument and held that the attorney fees provision did not apply. Wise,261 Mont.

The attorney fees provision in this case, however, states, in relevant part, as follows:. In the event that either party thereafter shall find it necessary to retain an attorney andorinstitute legal proceedings to enforce. modifv. or intemret anyprovision of this Agreement


### . . .the Court shall award reasonable attorney's fees and costs to the prevailing party 

### . . . . (Emphasis added.) Based on the inclusion ofthe additionalterm "modifk," we concludethat the attorney fees provision in this case is significantly broader than the one in Wise and therefore, that our holding in Wise does not control the outcome of this case. After a review ofthe record, we conclude that when Larry moved the District Court pursuant to 

## 5 40-4-219,MCA, and Rule 6O(b), M.R.Civ.P., he sought a modification of the parties' existing custody arrangement. Our conclusion is buttressed by Larry's affidavit in support ofhis motions, which states as follows: 

### I am requesting that the [dissolution] 

### decreebe 

### modified because of 

### fraud by Respondent (hereinafter "Mary"), and that pending a hearing on these issues the primaryphysical custody of the parties' minor child. Lisa. be changed from 

### Mary to 

### me. (Emphasis added.) We therefore conclude that the attorney fees provision in the Agreement does apply to Larry's motions. Accordingly,we hold that the District Court did not err when it awarded attorney fees and costs to Mary. We further hold that, pursuant to the Agreement, Mary is also entitled to her attorney fees and costs on appeal. Thejudgment of the District Court is affirmed.We Concur:

Justices 

## /